MR. SARWAR HUSSAIN MIR v. M/S DEONE MARKETING SERVICE

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4. Defendant No.2, on receipt of summons, has tendered appearance and filled an application under Order

7 Rule 11(a and d) of the CPC contending that plaintiff's suit for injunction is hit by the provisions of section 41(h) of the Act and therefore, sought for rejection of the plaint.

5. Learned Judge has heard the plaintiff's counsel and defendants counsel on application filed under Order 7 Rule 11(a and d). The learned Judge accepting the objections raised by dependent No.2, has rejected the plaint on the ground that the relief sought in the plaint is hit by provisions of section 41(h) of the Act. The said rejection of plaint is under challenge.

6. Learned counsel for the plaintiff, reiterating the grounds urged in the appeal memo, vehemently argues and contends that the plaintiff, apart from securing two agreements, has also obtained a registered GPA from the original owner, which is coupled with interest and the entire sale consideration is paid and therefore, the

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defendants, being strangers, cannot interfere and therefore, he would point out that the provisions of section 41(h) are not at all applicable to the case on hand since the plaintiff is not seeking an injunction against the owners but against strangers. Referring to Section 202 of the Indian Contract Act, he would point out that the registered GPA obtained by the plaintiff from the original owners is coupled with interest and the entire sale consideration is paid and therefore, learned Judge erred in applying the provisions of section 41(h) of the Act.

7. Per contra, learned counsel appearing for the defendants has vehemently argued and contended that the plaintiff cannot maintain this suit since he is an agent and the bar under section 230 of the Indian Contract Act as an agent he cannot personally enforce a contract on behalf of the principal. He also cited Order 3 Rule 2 of the CPC, contending that the plaint is defective and therefore liable to be rejected under the provisions of Order 7 Rule 11 of the CPC.

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8. Having heard both counsels, the following point would arise for consideration:

i. Whether the finding of the trial court that the present suit for injunction filed by the plaintiff is hit by provisions of section 41(h) of the Act is perverse, palpably erroneous and warrants interference?

ii. Whether the provisions of section 41(h) of the Act can be examined while

entertaining an application under Order 7 Rule 11 of the CPC?

iii. What order?

Findings on points No.i and ii:

9. Before this Court proceeds to examine the case on hand, this Court deems it fit to cull out paragraph Nos.3 and 4 of the plaint, which read as under:

"3. It is submit the after that the sellers of the Plaintiff and their family members Plaintiff executed the General power of and attorney in the name of Plaintiff

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dated 11/3/2019 delivered the all rights in favour of the Plaintiff and delivered the Physical possession in favour of the Plaintiff and they are fully agreed the receive the full sale consideration and there is no balance sale consideration in the sale agreement for registration and the sellers of the Plaintiff fully agreed that we will not cancel the G.P.A at any point of time hence said G.P.A is irrevocable G.P.A from the date of the G.P.A the Plaintiff is in possession and enjoyment over the suit schedule property and the Plaintiff invested huge money more than 20 to 30 lacks for leveling the suit schedule property for the purpose of the agriculture and put the fencing around the suit schedule property and improved the suit schedule property by labor and efforts of the Plaintiff and the Plaintiff is in possession and enjoyment over the suit schedule property without disturbance from any body.

4. It is submit that the defendants are strangers to the suit schedule property without have any manner of right title or possession or enjoyment over the suit schedule property, the defendants are manipulated names some documents in their on the strength of the manipulated documents they are seriously attempting to interfering with peaceful possession and enjoyment of the Plaintiff over the suit schedule property by trespassing up on the suit schedule property with an intention to causing hardship and injury and seriously attempting to disposes to the Plaintiff from the suit schedule property, hence the Plaintiff lodge a complaint before the concern Police the concern Police received the complaint of the Plaintiff dated: 28-06-2024 and not taking any action against the defendants and they are issued endorsement to the plaintiff Dated 29-06-2024 go and get the relief in the Civil court."

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10. This Court also deems it fit to extract the relevant paragraphs of the affidavit filed in support of application filed under Order 7 Rule 11(a and d) of the CPC. Paragraph No.5 would be relevant and the same is extracted, which reads as under:

"5. I state that, in view of the alleged claim of the plaintiff that the transaction between the parties is of enforcement of the agreement, as such section 41(h) of The Specific Relief Act, which reads that Section 41 - Injunction when refused An Injunction cannot be granted 41(h) "When equally efficacious relief can certainly be obtained by any other usual mode of proceeding except in case of breach of trust". The plaintiffs' alleged claim in the suit is one arising out of Agreement and the same is required to be enforced. Hence in view of a specific bar under the Specific Relief Act. Further the Plaintiff has produced a notice, in which the plaintiff has sent the same to Sri. Syed Mohammed Kazim @ Mir Mohamad Kazim and his family members for compliance in terms of the alleged agreement of sale in order to enforcement of the agreement the present suit of the plaintiff is bar under section 41 (h) of The Specific Relief Act as such the plaint is liable to be rejected. Hence the accompanying application."

11. On a meticulous examination of the averments made in the plaint, coupled with paragraph No.5 of the affidavit filed in support of the application under Order VII

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Rule 11(a) and (d) of the Code of Civil Procedure, this Court is of the considered view that the learned Trial Judge has failed to appreciate the true scope and ambit of Order VII Rule 11. A plain reading of the impugned order indicates that there is no proper analysis as to whether the bar under Section 41(h) of the Specific Relief Act, 1963, can be a valid ground for rejection of the plaint at the threshold. The learned Judge has proceeded mechanically without applying his mind to the settled principles of law governing the rejection of plaints. Crucially, the learned Judge has not ventured to examine whether the statutory bar under Section 41(h) constitutes a legal embargo falling within the purview of Order VII Rule 11(d) of the CPC, which mandates rejection of the plaint only when it discloses an inherent legal bar to the suit. Further, there is a total absence of judicial reasoning as to how Section 41(h), which pertains to the grant or refusal of an injunction, can be pressed into service for rejecting the plaint in limine.

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12. It is now well-settled through a catena of judgments of the Hon'ble Apex Court and this Court that a plaintiff who is merely an agreement holder, even if in possession under Section 53-A of the Transfer of Property Act, cannot maintain a bare suit for injunction against the original owner, unless the suit is accompanied by a prayer for specific performance. However, the present case is factually distinguishable. A careful perusal of the pleadings discloses that the plaintiff has not instituted the suit against the true owner of the property, but rather against alleged trespassers or third parties who are strangers to the contract. Despite taking a strong plea under Section 41(h) of the Specific Relief Act, the defendants have not disclosed or established any proprietary or possessory interest over the suit schedule property. The affidavit filed in support of the application under Order VII Rule 11 is conspicuously silent on this aspect. This material omission assumes significance and undermines the defendants' claim that the suit is barred by law.

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13. The crucial issue that arises for consideration in the present case is whether clause (h) of Section 41 of the Specific Relief Act can be invoked as a legal bar at the stage of considering an application under Order VII Rule 11 of the CPC. The object of Section 41(h) is to prevent a plaintiff from seeking injunctive relief where an alternative and equally efficacious remedy is available to him by way of a suit for specific performance. This bar, however, cannot be mechanically applied to all cases founded on agreements to sell. The phrase "equally efficacious relief"

used in Section 41(h) must be interpreted contextually and not abstractly. It contemplates a remedy that is equally prompt, convenient, and effective in the given factual context. Whether such an alternative remedy exists or not must be determined on a case-to-case basis, depending on the totality of facts and circumstances surrounding the transaction and the nature of the relief sought.

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14. In the facts of the present case, the suit is not instituted against the true owners but against alleged trespassers who are strangers to the agreement. Hence, the legislative intent behind clause (h) of Section 41 to avoid multiplicity of proceedings and to compel the plaintiff to seek a more comprehensive remedy is not attracted. The plaintiff has not set up a plea of ownership but seeks protection of his possessory rights against persons who, according to him, are rank outsiders and have no legal or contractual relationship with the suit schedule property. Therefore, the statutory bar contemplated under Section 41(h) is inapplicable to the case on hand. The rejection of the plaint on this ground is legally unsustainable.

15. Further, this Court has taken note of the fact that the plaintiff has annexed along with the plaint several documents which have not even been cursorily referred to or examined by the learned Trial Judge. The plaintiff has produced two agreements and a registered General Power of Attorney. A plain reading of the registered GPA reveals

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that the original owners have executed the same in favour of the plaintiff, and that it is a power coupled with interest. The recitals contained therein further indicate that the entire sale consideration has been paid. In the face of these recitals, the defendants' alternate contention that the plaintiff, being an agent, cannot maintain the suit in his individual capacity owing to the bar under Section 230 of the Indian Contract Act, 1872, is a complex question of fact and law which cannot be adjudicated at the stage of Order VII Rule 11. This issue necessarily requires appreciation of evidence and can only be determined in a full-fledged trial. Additionally, whether the agreement in question contemplates delivery of possession and whether the plaintiff can assert possessory rights thereunder are also matters that must be gone into during trial.

16. In the considered opinion of this Court, the learned Trial Judge has prematurely and erroneously applied the provisions of Order VII Rule 11 as a shortcut to non-suit the plaintiff without undertaking a proper and

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holistic examination of the plaint and the documents accompanying it. The principles governing rejection of plaints are now well crystallized.The plaint must be read as a whole, and the court must accept the averments made therein as true for the limited purpose of determining whether a cause of action is disclosed. Upon applying this test, this Court is more than satisfied that the plaint discloses a cause of action and raises triable issues which require adjudication on merits. Therefore, the recourse to Order VII Rule 11 in the instant case is wholly unwarranted and unjustified.

17. In light of the foregoing discussion, this Court is constrained to hold that the impugned order suffers from grave legal infirmities and is vitiated by non-application of mind. The learned Trial Judge has neither considered the plaint averments in their proper perspective nor adverted to the documents produced by the plaintiff. The impugned order, therefore, is perverse and unsustainable in law.

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Accordingly, point no. (i) is answered in the affirmative and point no. (ii) is answered in the negative.

18. Conclusion and Reasons for Reversal

i. For the reasons assigned hereinabove, this Court is of the considered view that the impugned order passed by the learned Trial Judge rejecting the plaint under Order VII Rule 11(a) and (d) of the Code of Civil Procedure is legally unsustainable and liable to be set aside. The conclusions arrived at by the Trial Court suffer from material irregularity and non-application of judicial mind, for the following reasons:

ii. The Trial Court has erroneously invoked the bar under Section 41(h) of the Specific Relief Act to reject the plaint. Section 41(h), which governs the grant or refusal of injunctions, cannot be treated as a statutory bar within the meaning of Order VII Rule 11(d) CPC. The bar under Section 41(h) is a discretionary consideration for the grant

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of final relief and cannot justify rejection of the plaint at the threshold.

iii. The suit is instituted against strangers to the agreement, not the original owners. The principle that an agreement holder cannot maintain a bare injunction suit against the true owner does not apply to the facts of the present case. The learned Judge failed to appreciate this distinction, thereby committing a serious error.

iv. The plaintiff had produced two agreements and a registered General Power of Attorney, which were material to the adjudication of the plaintiff's rights. The Trial Court has not adverted to or evaluated these documents while deciding the application. This omission has resulted in a perverse conclusion.

v. The Trial Court has misapplied the law governing rejection of plaints. The settled legal position is that the plaint must be read as a whole, and only if it discloses no cause of action or is barred by law on the face

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of it, can it be rejected under Order VII Rule 11. In the instant case, the plaint discloses triable issues and does not attract any express bar in law.

vii. The question as to whether the plaintiff, being an agreement holder or power of attorney holder, can maintain the suit in his individual capacity involves mixed questions of law and fact. These issues cannot be summarily decided under Order VII Rule 11 and must be examined after a full-fledged trial.

19. Accordingly, this Court passes the following

ORDER

i. The appeal is allowed;

ii. The judgment and decree dated 14.10.2024 passed by Principal Civil Judge and JMFC, Gauribidanur in O.S.No.357/2024 is hereby set aside;

iii. The matter stands remitted back to the trial court;

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iv. Since the parties are represented by their respective counsel, without expecting any fresh summons at the hands of the trial court, are hereby directed to appear before the trial court on 04.08.2025.

Sd/-

(SACHIN SHANKAR MAGADUM)

JUDGE

HDK

List No.: 1 Sl No.: 17

CT: BHK